Citation NR: 9700499
Decision Date: 01/10/97 Archive Date: 02/03/97
DOCKET NO. 94-47 786 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUES
1. Entitlement to service connection for a chronic
disability of the right knee.
2. Whether new and material evidence has been submitted
sufficient to reopen the veteran’s claim for entitlement to
service connection for a chronic disability of the left knee.
3. Whether new and material evidence has been submitted
sufficient to reopen the veteran’s claim for entitlement to
service connection for a chronic disability of the low back.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. A. Markey, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1967 to
September 1970 and from April 1971 to May 1974.
This matter came before the Board of Veterans Appeals (Board)
from a December 1993 decision by the Department of Veterans
Affairs (VA) Regional Office (RO) in Winston-Salem, North
Carolina that denied the veteran entitlement to service
connection for a chronic disability of the right knee and
determined that new and material evidence had been submitted
sufficient to reopen his claims for entitlement to service
connection for a chronic disability of the left knee and a
chronic disability of the low back, but denied these claims
on the merits. A notice of disagreement was received in
March 1994. A statement of the case was issued in April
1994. A substantive appeal was received from the veteran in
December 1994. A hearing was held at the RO in January 1995.
The Board is required to consider whether the appellant has
submitted new and material evidence warranting the reopening
of his claims for entitlement to service connection for a
chronic disability of the left knee and a chronic disability
of the low back before considering these claims on the
merits. 38 U.S.C.A. §§ 7104(b), 5108 (West 1991); Barnett v.
Brown, 8 Vet.App 1 (1995). As such, the issues in appellate
status are as listed above.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran and his representative contend, in substance,
that service connection is warranted for a chronic disability
of the right knee and that new and material evidence has been
submitted sufficient to reopen the veteran’s claims for
entitlement to service connection for a chronic disability of
the left knee and a chronic disability of the low back.
Further, they contend that service connection is warranted
for these disabilities.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has not submitted
a well grounded claim for entitlement to service connection
for a chronic disability of the right knee and that new and
material evidence has been submitted sufficient to reopen the
veteran’s claims for entitlement to service connection for a
chronic disability of the left knee and chronic disability of
the low back.
FINDINGS OF FACT
1. Medical evidence tending to demonstrate that the veteran
has a chronic disability of the right knee that had its onset
during or was otherwise related to active service has not
submitted.
2. The RO, in a decision dated in September 1985, denied the
veteran’s claims for entitlement to service connection for a
disability of the left knee and low back. This was the most
recent final disallowance of these claims.
3. Evidence submitted with respect to a disability of the
left knee and low back subsequent to the September 1985
decision is new and probative to the issue at hand and when
viewed in the context of all evidence does present a
reasonable possibility for a changed outcome of these claims.
CONCLUSIONS OF LAW
1. The veteran has not submitted a well grounded claim for
service connection for a chronic disability of the right
knee. 38 U.S.C.A. § 5107(a) (West 1991); (1995); Caluza v.
Brown, 7 Vet.App 498 (1995).
2. Evidence submitted in support of the veteran’s attempt to
reopen his claims for entitlement to service connection for a
chronic disability of the left knee and chronic disability of
the low back is new and material, and these claims are
reopened. 38 U.S.C.A. § 5108, 7104 (West 1991); 38 C.F.R.
§ 3.156(a) (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Entitlement to service connection for a chronic disability
of the right knee.
The veteran asserts that he developed a chronic disability of
the right knee as a result of his military service. The
threshold question to be answered in this case is whether the
veteran has presented evidence of a well-grounded claim; that
is, evidence which shows that his claim is plausible,
meritorious on its own, or capable of substantiation.
38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski,
1 Vet.App. 78 (1990). If he has not presented such a claim,
his appeal must, as a matter of law, be denied, and there is
no duty on VA to assist him further in the development of his
claim. Murphy at 81.
“In order for a claim to be well grounded, there must be
competent evidence of current disability (a medical
diagnosis) ...; of incurrence or aggravation of a disease or
injury in service (lay or medical testimony),...; and of a
nexus between the inservice injury or disease and the current
disability (medical evidence).” Caluza v. Brown, 7 Vet.App
498 (1995). The Board points out that for the purposes of
determining whether a claim is well grounded, it must presume
the truthfulness of the evidence, “except when the
evidentiary assertion is inherently incredible or when the
fact asserted is beyond the competence of the person making
the assertion.” King v. Brown, 5 Vet.App. 19,21 (1993).
The first requirement of Caluza is met in this case as there
is competent evidence that the veteran currently suffers from
a right knee disability. In this regard, the Board notes
that the review of a VA hospital record associated with the
file reveals that in July 1994, the veteran underwent an
arthroscopy with shaving of patella bilaterally and shaving
of medial femoral condyle on the left. The post operative
diagnosis with respect to the right knee was “chrondral
fracture on the right.”
The second Caluza requirement, that there be competent
evidence of the incurrence or aggravation of a disease or
injury in service, is not met in this case. A review of the
veteran’s service medical records does not reveal that the
veteran was ever treated for or complained of a right knee
injury or pain in that knee, or that he was ever diagnosed
with a right knee disability. The Board notes that during
the January 1995 RO hearing, the veteran testified that while
he had only complained about left knee pain and swelling
while in service, he also had experienced burning pain and
swelling in the right knee.
While this assertion is credible, the Board points out that
it is not competent, without supporting medical evidence, to
demonstrate that the veteran incurred a right knee injury or
disability in service, because such assertions require
medical knowledge. Espiritu, King. As there is not
competent evidence that the veteran suffered from a right
knee injury or disability while in service, the second Caluza
requirement is not met.
Since the second requirement of Caluza is not met with
respect to this claim, it is not necessary to discuss the
third requirement - whether there is a nexus between a
current disability an inservice injury or disease. The Board
does note that there is no evidence of record suggesting that
the veteran’s current chronic disability of the right knee is
in any way related to his period of active service.
In view of the above, the Board concludes that the veteran
has not submitted evidence of a well-grounded claim for
entitlement to service connection for a chronic disability of
the right knee. As such, the Board notes that VA does not
have a statutory duty to assist a claimant in further
developing this claim. 38 U.S.C.A. § 5107 (West 1991). The
Board does note that VA may be obligated under 38 U.S.C.A.
§ 5103(a) to advise a claimant of evidence needed to complete
his application. This obligation depends on the particular
facts of the case and the extent to which the Secretary of
the Department of Veteran Affairs has advised the claimant of
the evidence necessary to be submitted with a VA benefits
claim. Robinette v Brown, 8 Vet.App 69 (1995).
In this case, the RO fulfilled its obligation under section
5103(a) in the April 1994 statement of the case in which the
veteran was informed of the reasons for the denial of his
claim for entitlement to service connection for a chronic
disability of the right knee. Furthermore, by this decision,
the Board is informing the veteran of the evidence that is
lacking and what is necessary to make his claim well
grounded.
Finally, the Board notes that there is no prejudice to the
veteran in denying the claim as not well grounded even though
the RO decision was on the merits, because the “quality of
evidence he would need to well ground his claim or to reopen
it would seem to be...nearly the same...” Edenfield v.
Brown, No. 92-1263 (U.S. Vet. App. Nov. 1, 1995) (en banc).
Compare Bernard v. Brown, 4 Vet.App. 384 (1993). The veteran
may file a claim supported by corroboration by lay statements
or other evidence, or more importantly, medical evidence
tending to show that he has a chronic disability of the right
knee linked to service.
II. New and Material Evidence Issues
In an RO decision dated in September 1985, entitlement to
service connection for a left knee and low back disability
was denied. With respect to the left knee disability claim,
the RO found that while the veteran was treated for swelling
and effusion of the left knee during his first period of
active service, his separation examination in August 1970
revealed no complaints or other symptoms with respect to this
knee. With respect to the second period of active duty, the
RO noted that while the veteran was seen for complaints of
left knee pain and was diagnosed with chondromalacia during
that time, an April 1977 Army Reserve examination report and
an August 1981 VA outpatient treatment record (which noted a
May 1981 medical record) did not indicate that the veteran
had a chronic disability of the left knee.
With respect to the chronic disability of the low back, the
RO found that while the veteran was treated for back pain on
a few occasions during his periods of active service, the
latest being January 1973, there were no further complaints
documented, including when the veteran separated from
service. Further, it was noted that the April 1977 Army
Reserve examination did not reveal any complaints concerning
a back disability.
The Board notes that these decisions are final based on the
evidence then of record. However, the law and regulations
provide that if new and material evidence has been presented
or secured with respect to a claim which has been disallowed,
the claim may be reopened and the former disposition
reviewed. 38 U.S.C.A. §§ 5108, 7104 (West 1991); 38 C.F.R.
§ 3.156(a) (1995).
The United States Court of Veterans Appeals (Court), in
Manio v. Derwinski, 1 Vet.App. 140 (1991), established a two-
step analysis which must be applied in cases in which a
claimant seeks to reopen a claim which has become final.
First, there must be a determination as to whether there is
“new and material” evidence to reopen the claim. “New and
material” evidence is evidence not previously submitted, not
cumulative or redundant, and which by itself, or along with
evidence previously submitted, is so significant that it must
be considered to fairly decide the merits of the claim.
38 C.F.R. § 3.156 (a) (1995). If there is such evidence, the
claim must be reviewed on the basis of all of the evidence,
both old and new. A decision regarding either step is
appealable.
Furthermore, the Court has stated that in determining whether
evidence is new and material, the credibility of the newly
presented evidence is to be presumed. Justus v. Principi, 3
Vet. App. 510 (1992). In this case, the Board is required to
give consideration to all of the evidence received since the
last disallowance of this claim on any basis, or, in this
case, since the RO decision dated in September 1985. Evans
v. Brown, 9 Vet.App. 273 (1996),.
Evidence submitted subsequent to the September 1985 decision
includes a November 1981 service department record, VA
medical records, private medical records, and the veteran’s
testimony given during the January 1995 RO hearing. The
medical records, including a July 1994 VA hospital report,
demonstrate that the veteran currently has a left knee
disability. This particular report notes a discharge
diagnosis of chondromalacia of the patella and adjacent femur
and medial femoral condyle on the left. During the RO
hearing, the veteran testified that he started experiencing
pain and swelling in the left knee during training exercises
when he was on active duty, and that this condition has been
gradually getting worse and occurs with limited exercise.
Further, the medical reports, including a November 1989
report from the Boone Urology Clinic, note that the veteran
made complaints of low back pain and that a back examination
revealed tenderness and spasm of the paraspinous muscles. A
July 1993 VA outpatient treatment record notes a diagnosis of
mechanical low back pain.
The Board finds that the evidence submitted subsequent to the
September 1985 RO decision, discussed above, constitutes
“new” and “material” evidence, in that it is not cumulative
and is relevant and probative and, when examined in
conjunction with all evidence of record, raises a reasonable
possibility of changing the prior outcomes. Manio. In this
regard, it is noted that, as pointed out above, the RO
previously denied the veteran’s claims for entitlement to
service connection for a chronic disability of the left knee
and chronic disability of the low back in September 1985
because, essentially, there was no evidence that the veteran
suffered from those disabilities at that time. However, the
evidence submitted subsequent to that decision demonstrates
that the veteran may, in fact, suffer from these
disabilities.
Accordingly, the Board concludes that the veteran has met his
burden of submitting new and material evidence, as these
terms are defined, sufficient to reopen his claim for
entitlement to service connection for a chronic disability of
the left knee and chronic disability of the low back. The
Board must conclude, however, that further development of
these claims is necessary before further adjudication of this
matter can be undertaken.
ORDER
Entitlement to service connection for a chronic disability of
the right knee is denied as not well grounded.
New and material evidence has been submitted sufficient to
reopen the veteran’s claim for entitlement to service
connection for a chronic disability of the left knee. To
this extent, the appeal is granted.
New and material evidence has been submitted sufficient to
reopen the veteran’s claim for entitlement to service
connection for a chronic disability of the low back. To this
extent, the appeal is granted.
REMAND
It has been determined that the veteran submitted new and
material evidence sufficient to reopen his claims for
entitlement to service connection for a chronic disability of
the left knee and chronic disability of the low back. As
such, these claims must be reviewed on a de novo basis, that
is, on the basis of all of the evidence, both old and new.
Manio. The evidence of record consists, in part, of the
veteran’s service medical and department records, VA and
private medical records, and the veteran’s testimony taken
during the RO hearing.
As the veteran has submitted evidence that is sufficient to
justify a belief that his claims for entitlement to service
connection for chronic disability of the left knee and
chronic disability of the low back are well grounded, the VA
has a duty to assist him in the development of facts
pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991) and
Murphy v Derwinski, 1 Vet.App. 78 (1990).
In order to comply with the duty to assist and to fully
address the substance of the present appeal, the Board finds
that further evidentiary development is in order, in that the
veteran should be afforded an orthopedic examination in order
to determine the nature, and more importantly, the etiology
of any chronic disability of the left knee and chronic
disability of the low back he may currently have.
Accordingly, this case is hereby remanded for the following
actions:
1. A VA orthopedic examination should be
accomplished in order to determine the
nature and etiology of the veteran’s
chronic disability of the left knee and
chronic disability of the low back, if
either of these disabilities is found.
All necessary tests and studies should be
accomplished, including X-rays, and all
clinical manifestations should be
reported in detail. The veteran's entire
claims file should be made available to
the examiner for review prior to the
examination. The examiner should provide
an opinion as to the etiology of the
veteran’s chronic disability of the left
knee and chronic disability of the low
back, if found, including any
relationship between these disabilities
and his military service.
2. The veteran and his representative
should be given an opportunity to submit
argument and any additional evidence on
the reopened claims for entitlement to
service connection for a chronic
disability of the left knee and chronic
disability of the low back.
3. The RO should then conduct a de novo
evaluation of the specific claims of
entitlement to service connection for a
chronic disability of the left knee and
chronic disability of the low back. A
review of the evidence should be
undertaken with consideration given to
all evidence and arguments of record.
4. In the event the decisions remain
adverse to the veteran, he and his
representative should be furnished a
supplemental statement of the case and be
afforded the opportunity to respond.
Thereafter, the case should be returned to the Board after
compliance with all appropriate appellate procedure. No
action is required of the veteran until he is further
notified. The Board intimates no opinion, either legal or
factual, as to the ultimate outcome of this case pending
completion of the requested development.
RICHARD D. TURANO
Acting Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
- 2 -